Wisconsin Unions Lose First Round, Win Luck of the Draw in the Second

Wisconsin unions seem to have lucked out with the federal judge assigned to their latest lawsuit trying to stop the state’s new collective bargaining law for state employees. The Wisconsin Education Association, the AFL-CIO, the Wisconsin State Employees Union, and other unions that have been violently and belligerently protesting the law lost big on June 14 when the Wisconsin Supreme Court threw out the state court lawsuit that had been filed against the collective bargaining law.

The state Supreme Court declared all of biased county Judge MaryAnn Sumi’s erroneous injunctions and other orders preventing the law from going into effect void ab initio – invalid from the second they were issued – because she had “usurped the legislative power” of the state legislature. The court dismissed claims that the passage of the law violated Wisconsin’s open meeting law. Not only did the facts not support those claims, but Sumi had ignored prior precedent on these issues and violated basic separation of powers principles by intermeddling in the internal rules of the legislature for enactment of a law.

However, almost without missing a beat, these same unions filed a federal lawsuit the very next day (June 15) in the Western District of Wisconsin. This new lawsuit, which had obviously been prepared prior to the Wisconsin Supreme Court’s decision, reads more like a press release or political manifesto than a serious legal document. It claims that Wisconsin’s new law has no “discernable connection to any legitimate governmental objective” but instead is “punishing the political opponents and rewarding the political supporters of the Governor.” However, there are more than sufficient rational and reasonable grounds under the law to justify all the actions the Wisconsin legislature and the governor took to protect Wisconsin taxpayers and balance their state budget.

In the 28-page complaint, the unions are claiming that the Wisconsin law violates the First and Fourteenth Amendment because it discriminates between different classes of public employees (the law exempts public safety employees like police and firemen). The law also supposedly interferes with the ability of union members “to support financially their unions’ activities” because it no longer allows automatic dues deductions from state paychecks. Of course, the law does not prevent state employees who want to be members of a union from writing a personal check to their union to pay their membership dues. But according to the unions, there is apparently a constitutional right to automatic dues deductions – the Wisconsin prohibition interferes with “the ability to finance their unions’ free speech and associational activities.”

But this issue has already been decided by the U.S. Supreme Court. In 2009, Chief Justice John Roberts authored an opinion in Ysursa v. Pocatello Education Association that upheld Idaho’s ban on automatic payroll deductions for the union dues of state government workers. That ban did not violate the unions’ First Amendment rights since the government has no obligation to subsidize unions’ political speech.

That claim by the union, however, is deeply revealing because it also shows that the anger of these unions over what happened in Wisconsin really comes down to a fundamental issue – money. Despite their public cries about the new increased contributions by state employees to their health and pension benefits that the law requires, union executives have made no claim in the lawsuit whatsoever over those increases. What these unions are really scared of is that they will be unable to convince their members to voluntarily pay their dues, the dues that pay for the big salaries and expensive perks that so many union executives enjoy at the expense of their members.

It is those dues that the unions also use for political purposes (that their members often disagree with) and to make political contributions to candidates that their members don’t always support. It is those dues that unions have used to purchase the unswerving political loyalty of certain liberal politicians, lock, stock and barrel. And they have reason to be scared by the Wisconsin law. As John Fund reported recently, when New York City’s Transport Worker’s Union lost its right to automatic dues collection in 2007 after an illegal strike, “its income fell by more than 35% as many members stopped ponying up.”

Under the current assignment order in the Western District of Wisconsin, this new case has already been assigned to Chief Judge (and Obama appointee) William M. Conley, who was confirmed last year. The unions were probably cracking open the champagne as soon as they found this out on June 15. Why? Because while most Americans rightly view the concept of being forced to pay compulsory membership dues as a basic violation of their associational rights and their liberty, Conley’s prior work as a litigator included repeatedly representing clients who took the exact opposite view.

In 1989, Conley filed an amicus brief in the U.S. Supreme Court in Keller v. State Bar of California. This was the case in which the Supreme Court held that the use by a bar association of compulsory dues to finance political and ideological activities with which some members disagreed violated those members’ First Amendment right to free speech. Conley took the wrong (and losing) position in that case, arguing that the First Amendment did not prohibit a bar association from using mandatory licensing dues extracted from lawyers for lobbying and political purposes even if the lawyers disagreed with those political purposes.

Fortunately, Chief Justice Rehnquist didn’t listen to Conley. In his majority opinion, Rehnquist approvingly cited Thomas Jefferson’s memorable axiom that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

Conley’s opposite view in the Keller case – that forcing contributions does not violate the First Amendment – was not a one-time incident. He took similar positions in other cases in the Seventh Circuit Court of Appeals in Crosetto v. State Bar of Wisconsin and Levine v. Heffernan.

So the unions have, unfortunately for the citizens of Wisconsin, snagged a federal judge who is clearly in line with their views on forced dues payments to unions. Whether Conley can set aside his biases on this issue and render an objective opinion on the unwarranted claims the unions have advanced in this political lawsuit is an unanswered question. But given the history and background of the overwhelmingly liberal, activist, “empathetic” judges that President Obama has advanced to the bench, there are reasons for grave concern.

What we may get in federal court is a repeat of what happened in the state court case – an out-of-control, trial-level judge ignoring the law and applicable precedent to give the unions the political result they wanted, who was then overturned by a higher court. Even if Conley gives the unions what they want in federal district court, they are almost sure to lose in higher courts. Hopefully, it won’t be too long before the score will be Wisconsin taxpayers 2 for 2, unions 0 for 2.

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative. Read his research.

Join The Discussion

I thought that the judiciary was supposed to fair and impartial, intrepreting only the intent of the law before them, not legislating from the bench. I ask the astute legal minds who are reading this…how do the people stop judges from doing this? Can they be recalled? Do all judges and I mean all judges, including the US supreme court justices, need to be elected by the people and not appointed by corrupt politicians?

[…] Wisconsin Unions Lose First Round, But Win the Luck of the Draw in the SecondHeritage.org (blog)Wisconsin unions seem to have lucked out with the federal judge assigned to their latest lawsuit trying to stop the state's new collective bargaining law for state employees. The Wisconsin Education Association, the AFL-CIO, the Wisconsin State …Wisconsin Union Bill Reinstated, Now Facing LawsuitsHR.BLR.comWisconsin Supreme Court Tussle No Crisis, Just Business As UsualForbes (blog)Former State Supreme Court Justice says ruling on budget repair bill too fastFOX6Now.com Milwaukeeall 27 news articles » […]

[…] The Wisconsin Supreme Court’s ruling set off another wave of celebrations and recriminations – both once again premature, since almost without missing a beat, these same unions filed a federal lawsuit the very next day (June 15)… […]

Yes the issue is about money on both sides. Will the unions live off the backs of the workers by giving them a right to be represented, or will big business live off the backs of the american citizens by paying politicians to force us into submission and make us pay their taxes. Surely money is on the side of big business in the form of campaign dollars, lobbying influence, political payoffs, and media propoganda carefully sculptured by psychologists and aimed at a dumbed down population. Go to the street and ask the first person you see what the three branches of government are or ask them to define the system of checks and balances. I'm willing to bet they won't know, but I'll bet they'll know who won on American Idol.

Here it is again, states – for the people – the feds for the unions. The feds are increasingly anti-American in every part of the instution. They are no longer checking each other – just reinforcing the takeover of America. We can get the house in no time and find the RINO's we put in there have no back bone. It takes a little longer to retake the Senate – so now we continue to see massive power grabbing legislation coming from them. THe presidency has become a 8 year tenure – do whatever he wants with the 2.7 million overpaid and overnumber federal drones at his whim. It would be bad enough that these two branches no longer work, but we are loosing the judicial branch as well. All seem to be head strong in driving this nation into darkness.

With a collective 4 trillion in unfunded government expendatures in 2011 and more to come in 2012, w

It's so sad when our country is debased to the point that courts are houses of ridicule and politicians are in business because of "dirty money." Can we please have courts and politicians that actually answer to the people and represent them? I know it's a tall order and all, but I'm pretty sure as a citizen of the United States, I'm entitled to at least THAT much…

" What these unions are really scared of is that they will be unable to convince their members to voluntarily pay their dues, the dues that pay for the big salaries and expensive perks that so many union executives enjoy at the expense of their members." This quote just about says it all. However, we cannot forget that they are addicted to the power they wheild, also.

BEWARE of CARBON CREDITS: Look up the periodic table for Carbon. It has 6 electrons, 6 neutrons, and 6 protons. Since we are made of carbon it is the number of a man (Revelations 13:16-18) Or 666.

it's unacceptable to have American judges ruling in favor of special and conflicts of interests. To Judge is without bias and according to the rule of law which seems to be missing from those whose title counteracts expected conduct of business. removal of phony judges is necessary! reprimand required! In order to get America's Constitution back we have to demand respect, compliance and accountability from those who's actions are beyond our control, expected to reflect the American Constitution. time to correct the misinterpretation that's being spread!

i DO NOT THINK THAT IS ASKING TOO MUCH,HOWEVER WITH JUDGES APPOINTED FOR LIFE BY LIBERAL POLITICIANS,WHO CAN TELL HOW THEY WILL INTERPRET THE LAW SOMETIMES COMPLETELY IGNORING THE CONSTITUTION.WE NEED A CHANGING OF THE GUARD TOTALLY.JUST LIKE BASEBALL WE NEED TO GET BACK TO THE BASICS.

The Big Lie in your opening paragraph tells me everything I need to know about your anti-working family politics and agenda. Wisconsin unions have NOT been "violently" protesting the stripping away of collective bargaining rights for public workers in Wisconsin. I know that for a fact because I'm actually on the ground in Wisconsin and have been for months at the capitol – inside and out in the midst of these protests for hours each day. I've documented what's happened – with video, audio and still photos. There has been NO violence.
The Wisconsin uprising has been driven by middle class working families – firefighters, teachers, nurses, students, police officers, prison guards and other public workers. They are our neighbors, our friends, our relatives. Folks we depend on each day here to serve and protect, to heal and to educate. Try spewing your lies and your venom to their faces here in Madison. You're a shameless liar out to attack decent working families and defend the stripping away of a basic human right. You have no idea what democracy really looks like!

Is it a basic human right to be made to pay union dues against your will Doug? If it is such a great "privlidge" I would think most folks would be more than happy to pony up. One would think the unions would have no issue in convincing all the hard working families of the benefits. You are certainly free to contribute if you choose. WHATS THE PROBLEM.

I caught the same idiotic characterization i.e. "violently" when I read this piece as well. Reminds me of the so-called "Fair and Balanced" propaganda bent of Faux News. Thanks to Wisconsin events I've never been so clear on how sleezy the Republican Party can be.

Hey, let's be clear, discussions about the extent of Union rights may be valid, but not the way the GOP has raised them. Walker's gang has so assumed an authoritarian stance, it was inevitable that there would be a massive grass-root backlash and where possible political push back. The Republicans created the partisan political civil war. Ultimately fairness will prevail, but yes there will be a lot of GOP damage to undo, unless the Koch brothers buy off every opposition.

The Big Lie in your opening paragraph tells me everything I need to know about your anti-working family politics and agenda. Wisconsin unions have NOT been "violently" protesting the stripping away of collective bargaining rights for public workers in Wisconsin. I know that for a fact because I'm actually on the ground in Wisconsin and have been for months at the capitol – inside and out in the midst of these protests for hours each day. I've documented what's happened – with video

I am from Michigan and watched the events in Madison fairly closely. I seem to remember that several million dollars damage was done to the Wisconsin Capitol—by somebody. There was news that union thugs from other states, plus Wisconsin, were the perpetrators of the massive vandalism and destruction.
Did I miss something??

Doug, you must have been video taping the tea partiers because I saw hatred in the eyes of union members, violence sounding from their mouths and threats screaming from their lungs. Things have calmed down.

Sell your video documentary to media bias. They'll love to pay you for all of the peaceful demonstrations of government unions and union members you have proof of! Although it wouldn't matter to me as I saw what I saw and you're video isn't going to change my mind in the least bit. All it takes is once! I've heard and saw their sincerity loud and clear more then once under violent tendencies, which implies the big lie to be yours.

The unions really could care less about the rank and file. I have been a part of union negotiations when a union was to be certified and the very first request by the union representatives was tom demand the employee check off list or automatic payroll deduction of union dues. This had to be settled before there was any discussion of what the union wanted for the employees. If the unions had to go to each member and collect their dues there would be no unions. When the employee got their check and had bills to pay and put food on the table, if the union representative came and demanded dues, the employee would say no! I need this money for my bills and family. It is all about money for the unions and not really for the worker.

Whether it's the people's will on marriage in California, immigration in Arizona, redistricting in Texas or pensions in Wisconsin, the left will always find a federal judge to twist the Constitution to their favor. Even when the people win, they lose. The left loves to talk about diversity, but they can't stand it when the people actually make it so in their states. Are the states not guranteed a republican form of government? Viva la difference!

You know what this current crowd of GOP liars want is to turn the United Sates into China, where only a few giant corporations run things, they own the factories, the apartments, the grocery stores, the gas stations, the newspaper and magazine publications, the radio stations, the television stations and you pay them and they get all the benefits, and if you do not like it go jump off cliff. Well some Chinese workers seeing that as individuals that they cannot progress have done just that by committing suicide.

The current crowd of GOP liars want to steal Medicare from the elderly, they want to abolish a woman’s right to choose and have control over her own body, they want to abolish collective bargaining rights for our Unions, and on top of it all they want to blame the poor, the middle class and the public sector workers for a recession that the GOP created (Thanks to the Dullard “W”), while their beloved “Fat cats” continue to pay themselves exorbitant salaries, bonuses, fringe benefits.

The GOP is like the “Chicken Littles” always saying that the “Sky is Falling”, like the same ones that were the “Chicken Hawks” (“W” Wars), big talk no courage.

The United States, favors creativity wherever it can be found. We’re apostles of prosperity and defenders of the free exchange of ideas and when more people in more countries are free to rise, to invent, to communicate, to dissent, it’s not the doom of United States leadership, its the triumph of the American way.

Generations have worked hard and sacrificed much for the country to reach this point (individuals and our Unions that represented our poor, the middle class and public sector workers), and with further hard work and sacrifice (along with our relentless self-doubt) the United States will rise again, we do not tire and we are coming back, no matter what Fox news and their GOP “Chicken Littles” lackies keep saying about our nation. The win in New York was the beginning but the next will be Indiana, Iowa, Kansas, Michigan, Ohio, Wisconsin and later the other states of our nation, Never Bet Against the United States, watch out GOP, we are coming for you!

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